General Terms and Conditions
of MacroArray Diagnostics GmbH
1.1. These General Terms and Conditions shall apply to the sale and global supply of products by MacroArray Diagnostics GmbH (“MADx”), Lemböckgasse 59/Top 4, 1230 Vienna, Austria, FN 448974g.
1.2. Contracts for the purchase of MADx products shall be brought about by the acceptance of a quotation furnished by MADx. Quotations shall be furnished in writing or by e-mail. They may be accepted in writing, by e-mail, orally or by telephone. Unilateral orders furnished – in whatever manner – to MADx shall be dealt with as enquiries only and shall not trigger any obligations on the part of MADx.
1.3. The MADx products shall be intended solely for the use in the customer’s health care facilities. Where a product carries a use-by date the customer shall not use or pass on to a third party such product after its use-by date. The customer shall, as a rule, not be permitted to pass on for free or for a consideration any products bought from MADx (for exceptions see Item 7. below).
2.1. The products shall be delivered DDP pursuant to the Incoterms 2010 except as otherwise provided in these General Terms and Conditions.
2.2. The cost of delivery shall be charged at a lump sum of € 50.00 for shipments within Europe. The cost of delivery outside Europe shall be charged in accordance with actual expenses.
2.3. The products may be delivered and invoiced as partial deliveries.
2.4. MADx shall use its best efforts to comply with the delivery periods and dates; except as expressly agreed otherwise, such periods and dates shall be non-binding and shall be understood to mean the expected date and time of delivery and handing-over to the customer. The customer may rescind the contract on the grounds of failure to deliver solely after granting a reasonable respite of at least four weeks. Respite and rescission shall require a notification by registered letter. The right to rescind the contract shall apply only to such part of the shipment which is at fault.
2.5. In the event that MADx rescinds the contract due to the customer’s default in accepting the shipment the customer shall pay a penalty of 50% (fifty percent) of the pre-tax invoiced amount.
3.1. Invoices shall be due and payable in full not later than two (2) weeks after their receipt. In the event of payment default the customer shall pay default interest at a rate of 9.2 (nine point two) percentage points p.a. in excess of the base lending rate.
3.2. If partial payments have been agreed, the customer shall be in default of payment if a single partial payment is not made in good time and to the full amount.
4. Reservation of title
4.1. The products delivered to the customer shall remain the property of MADx until complete payment of the purchase price and of any further costs payable by the customer. For as long as MADx retains title to the products the customer shall bear the risks for the products. Until title has passed to the customer, the customer shall not be entitled to encumber the products with a lien or other third-party right. In the event of a default in payment MADx shall be entitled to seize the products.
5. Warranty and damages
5.1. The warranty period shall be six months after acceptance of the products by the customer. It shall be the customer’s responsibility to furnish evidence of a defect. Sections 924 and 933b of the Austrian Civil Code ABGB shall not apply. The customer shall promptly and specifically notify any defect in writing.
5.2. The customer shall examine all products in detail immediately upon their receipt. Any claims for incomplete shipments or apparent defects shall be notified specifically and in writing to MADx promptly after receipt of individual shipments failing which the delivery shall be deemed to have been accepted without reservations and no claims for warranty and damages made; the same shall apply if hidden defects are not notified in writing within one week of their discovery. Defects shall be clearly described by type and scope. The customer shall provide temporary storage for rejected products.
5.3. With the exception of personal injuries, MADx shall be liable for any loss or damage only when caused intentionally or by gross negligence. Subject to statutory provisions, MADx’s liability shall be limited to the amount of the purchase price. No compensation shall be made for any consequential damage (from the defect), other property damage, pecuniary loss or loss from third-party claims against the customer.
6. Data protection
6.1. MADx processes the following customer data for the purposes of contract management and preservation of evidence: customer number, name, Company Register number or other register or ID number, if any, address, contact information (such as telephone number, fax number, e-mail address), data on order management and invoicing (such as date of order, products, quantities, prices, shipping and invoicing data) as well as name and data of contacts at the customer’s. All personal data are processed with a Customer Relationship System, with due regard to the applicable data privacy laws (see 6.4).
The customer shall promptly inform MADx of any changes in the data required for the contract. The above data shall be processed for the duration of the contractual relationship and shall be erased, due to statutory obligations to preserve commercial records, not later than seven years after termination of the contractual relationship, except when more extensive statutory obligations for preservation apply.
6.2. The above data shall not be disclosed to any third party.
6.3. The customer shall be entitled to information on data involving the customer and processed by MADx and – to the extent defined by law – to demand correcting or erasing or limiting their processing or to object to their processing, and to the right of data portability. Moreover, the customer is entitled to file a complaint with the Austrian Data Protection Authority.
6.4. For the inclusion of customers (and their employees) into MADx’s Customer Relationship Management (CRM) System (purpose see 6.1), a separate data protection information form, including declaration of consent will be presented to the customer. Entry of personal data into the CRM System will only be facilitated, if written consent by the respective individual is procured.
7. Special provisions for distributors
7.1. The following provisions shall apply to contracts between MADx and customers contractually purchasing products for the purpose of reselling them (“distributors”):
7.2. The ban on reselling as provided in Item 1.3. above shall not apply.
7.3. Such products shall be delivered FCA as provided in the Incoterms 2010, except as otherwise provided in these General Terms and Conditions. Item 2.1. above consequently shall not apply.
7.4. Distributors shall be entitled to resell products which are under reservation of title as provided for in item 4 above. However, this shall not apply to products the purchase price of which has not been fully paid for by the distributor in spite of being due and payable. Until complete payment has been effected, the distributor shall assign, on account of payment, to MADx any and all claims and security interests due to the distributor from the resale. In the event of a default of payment, MADx shall be entitled to inform the repurchaser of the assignment and demand the payment to be made to MADx.
8. Applicable law and venue
8.1. Any and all legal transactions entered into under these General Terms and Conditions shall be governed by Austrian law; all foreign systems of law shall be excluded, as shall be the UN Sales Convention.
8.2. The Commercial Court of Vienna shall serve as the sole venue for any disputes directly or indirectly arising from or in connection with any contractual relationship governed by these General Terms and Conditions.
9.1. In the event that any provision(s) of these General Terms and Conditions should be or become legally ineffective or unenforceable this shall not affect the legal effectiveness of the remaining provisions. The contracting parties shall replace such legally ineffective or unenforceable provision(s) by a legally effective and enforceable provision which is as close as possible in content and purpose to the legally ineffective and unenforceable provision.
9.2. No agreement to deviate from these General Terms and Conditions nor any change of or addition to a contract shall be valid except when made in writing. This shall also apply to any change in the requirement of the written form.
9.3. Claims by MADx shall not be offset by counterclaims of any kind whatsoever.